Constitution Check: Is the constitutionality of voter ID laws already settled?

Lyle Denniston explains why Texas might face a tough road if it appeals its Voter ID decision to the Supreme Court.

The statement at issue:

“The Supreme Court of the United States has already upheld Voter ID laws as a constitutional method of ensuring integrity of the ballot box.”

– Texas Attorney General Greg Abbott, in a statement August 30 announcing that the state will appeal to the Supreme Court to challenge a lower federal court decision striking down a Texas law requiring voters to show a photo ID before they may vote.

We checked the Constitution, and…

When the Supreme Court applies the Constitution to a law and upholds it, it is easy to predict that when another similar law comes along, the result will be the same. That is true – sometimes, but not always. It thus may be premature for Attorney General Abbott to proclaim, as he did, that “we are confident we will prevail” in the state’s appeal to the Supreme Court seeking to enforce its photo ID law for voters.

Any state with such a law is bound to argue, when its law is tested in court, that a Supreme Court decision four years ago (Crawford v. Marion County Election Board) saves its law from the constitutional challenge. In that decision, the justices did uphold an Indiana law requiring all voters to produce a government-issued photo ID at the polls. The state offered a free photo ID to registered voters who could prove who they were and where they lived. If the matter was in doubt, a voter could cast a provisional ballot, and prove eligibility later.

About Constitution Check

• In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The court found that Indiana had justified the requirement, concluding that the state had a valid interest in preventing voter fraud, modernizing its election procedures, and protecting the public’s confidence in the integrity of the election process. And, it further found, the requirement did not add much of a burden for voters, although it agreed that the burden would be greater on elderly voters and the poor, for example. It said that burden would fall on a “small number of voters,” but added that it could not define that burden precisely.

What was crucial to the decision, though, was that the challengers had complained that the Indiana law could never be enforced in any factual circumstance, against any voter. That is what is called a “facial challenge,” and it is the hardest kind to win in court. “A facial challenge must fall when the statute has a plainly legitimate sweep,” the court concluded.

When a state judge in Pennsylvania refused last month to block that state’s photo ID laws, the Crawford decision played a central role in the decision. Judge Robert Simpson also noted that other courts had applied that ruling in upholding photo ID laws for the city of Albuquerque, N.M., and the state of Georgia. The Pennsylvania challenge also was a “facial” complaint against the state law, and Judge Simpson came out where the Supreme Court had in 2008.

The photo ID mandate, he concluded, “is a reasonable, non-discriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life….I cannot say that a constitutional violation is evident.”

Why didn’t those same observations work for Texas? The special federal District Court in Washington that last week barred Texas from enforcing its photo ID law ruled that the Crawford decision did enhance states’ power to enact such laws, but it did not control the outcome for Texas. Why not? Mostly, it comes down to the fact that Texas is in the quite unusual position that it cannot enforce any new election law unless it first proves that the law will not discriminate against minority voters, and the Washington court said Texas had not satisfied that test.

Only nine states, mostly in the South, and local governments in seven other states are in that position. That’s because they are covered by the 1965 federal Voting Rights Act’s requirement that those states, counties and cities with the worst historic records on racial discrimination in voting must get official clearance in Washington before putting any voting law – even if very trivial – into actual effect. (That special obligation is one that Texas, and a number of other jurisdictions covered by the Act, are now pressing the Supreme Court to strike down that requirement as an unconstitutional interference with state sovereignty.)

Another difference between the Indiana case and the Texas case is that the burden of showing that a photo ID law was on voters in Indiana, while the burden of showing that such a law would not discriminate against minority voters was on the state, not the voters

The Washington court concluded that the photo ID requirement would fall most heavily upon the poor in Texas when they sought to vote, and there is a close coincidence in Texas between being poor and being a member of a minority, black or Hispanic. Texas, the court noted, makes it quite difficult to get a substitute if a voter does not have a photo ID. For example, a voter may have to drive 100 to 125 miles – twice that, in a round trip – to find a state office open and ready to issue a substitute document. A significant portion of the state’s blacks and Hispanics do not even have a car or truck, the court said. Moreover, a substitute identifying document costs $22.

Summing up, the Washington court said the Texas law “is the most stringent in the country” and “imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.”

Texas thus may go to the Supreme Court facing a harder task than Indiana did. Different factual situations in different cases can have that effect.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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